Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4296-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4296 OF 2019
IN
L. C. SUIT NO.2592 OF 2019
CNR NO.MHCC01-011772-2019
Munira Abid Hussain Shaikh … Plaintiff
Vs.
M/s. ASB Realtors Builders and
Developers & Ors.
… Defendants
Appearances:
Ld. Adv M. S. Ansari for the plaintiff.
Ld. Adv Ashok M. Saraogi for defendants No.1 and 2.
Ld. Adv Mangal Kadam for defendants No.4 and 5.
CORAM : HIS HONOUR JUDGE
SHRI. R. S. PAVASKAR
(C.R.NO.12)
DATED : 03rd MARCH 2021
ORDER
The plaintiff has taken out this notice of motion under
Order XXXIX Rule 1 and 2 and Order XL Rule 1 of the Code of Civil
Procedure, 1908 (CPC).
2. Heard the learned Advocates for the parties. Perused the
record.
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3. Admittedly, the plaintiff was the occupant of Room No.24,
admeasuring 14.82 sq. mt. carpet area on the 3rd Floor of the building
known as Naresh Niwas Building situated at 42/48, Underia Street, C.S.
No.11/1104 Byculla Division, Mumbai-08 (hereinafter referred to as
“the suit premises”). Defendant No.1 is redeveloping Naresh Niwas
building under the Redevelopment Project. Defendants No.1 to 3 vide
the letter dated 18.04.2011 had agreed to provide a flat in the newly
constructed building to the plaintiff in place of the suit premises and
also agreed to give rent of Rs.13,000/- per month till permanent
accommodation is provided to her. The plaintiff vide the letter dated
18.04.2011 had given irrevocable consent for the redevelopment of
Naresh Niwas in accordance with the modified DC Regulations under
Section 33 (7). Defendants No.1 to 3 by the registered agreement at
Exh. D to the plaint had agreed to provide permanent accommodation
to the plaintiff in place of the suit premises.
4. The plaintiff has sought a temporary injunction restraining
defendants from alienating, parting with possession or creating third
party interest in the flat reserved for her in the newly constructed
building and a mandatory injunction directing defendants No.1 to 3 to
deposit the arrears of rent as per Exh. C to the plaint. She has also
requested to appoint the Court Receiver for the flat reserved for her in
the newly constructed building.
5. From the submissions advanced by the learned Advocate
for the plaintiff and the copy of the notice dated 03.12.2020 under
Section 353-A of the Mumbai Municipal Corporation Act, 1888 (in short
‘MMC Act’), it appears that except for Flat No.601, defendants No.1 to 3
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have inducted the persons mentioned in that notice to occupy the
remaining flats in the newly constructed building. It is, thus,
prima
facie clear that defendants No.1 to 3 have already parted with the
possession of the flats in the newly constructed building. Thus, the
prayer of the temporary injunction sought by the plaintiff has become
infructuous. Moreover, in the present suit, the plaintiff has not sued
these persons. So, as submitted by the learned Advocate for defendants
No.1 to 3 neither temporary injunction can be granted against them nor
a Court Receiver can be appointed for the flats in their possession.
6. The learned Advocate for defendants No.1 to 3 has
vehemently submitted that the plaintiff is doing forum shopping by
approaching multiple forums for the same relief, and therefore, she is
not entitled to the equitable relief of temporary injunction. He has laid
strong emphasis on the following citations to bolster up his contentions.
1. Udyami Evam Khadi Gramodyog Welfater Sanstha and Anr.
Vs. State of U.P. and Ors., (2008) 1 SCC 560
2. Amar Singh Vs. Union of India and Ors. (2011) 7 SCC 69
3. Chetak Construction Ltd. Vs. Om Prakash and Ors., (1998) 4
SCC 577
4. Jagmohan Bahl and Anr. Vs. State (NCT of Delhi) and Anr.,
(2014) 16 SCC 501
5. Kamini Jaiswal Vs. Union of India and Anr., (2018) 1 SCC 156
6. Rajiv Bhatia Vs. Govt. of NCT of Delhi and Ors., (1999) 8 SCC
525
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7. S. P. Chengalvaraya Naidu Vs. Jagannath and Ors., (1994) 1
SCC 1
8. Tamilnad Mercantile Bank Shareholders Welfare Association
(2) Vs. S.C. Sekar and Ors., (2009) 2 SCC 784
9. Surekha Mukund Dabhade Vs. State of Maharashtra (2019
SCC Online Bom 1119).
7. There is absolutely no bicker over the proposition that relief
of temporary injunction being equitable and discretionary relief a party
who seeks such relief must come to the Court with clean hands.
8. In the decisions cited and relied upon by the learned
Advocate for defendants No.1 to 3, the practice of forum shopping is
deprecated.
9. The learned Advocate for the plaintiff has submitted that
the plaintiff was allowed to withdraw the writ petition filed by her with
the liberty to file a suit, and therefore, it cannot be said that the plaintiff
has indulged in forum hunting or approached this Court with unclean
hands.
10. From the copy of the order dated 31.07.2019 in Writ
Petition No.1094 of 2019, it is clear that the Hon’ble Bombay High
Court had allowed the plaintiff to withdraw the writ petition with the
liberty to file a suit.
11. The copy of the order dated 11.01.20201 shows that the
Chief Officer, M.B.R.& R.Board, Mumbai has directed defendants No.1
and 2 to obey the conditions mentioned in the permanent alternate
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accommodation agreement entered into by them with the certified
tenants/occupants and to pay rent to them for the temporary alternate
accommodation as agreed by them.
12. From the order dated 11.01.2021, it
prima facie appears
that the relief which the plaintiff is claiming in the present notice of
motion has already been granted to her by the Chief Officer, M.B.R.&
R.Board, Mumbai. So, the question of granting the same relief in this
notice of motion does not arise.
13. The learned Advocate for defendants No.1 to 3 has pointed
out that the plaintiff by not producing the entire agreement for
permanent alternate accommodation dated 27.05.2013 has suppressed
material facts from this Court.
14. I find substance in the submissions made by the learned
Advocate for defendants No.1 to 3. The plaintiff has not produced all
the pages of the agreement dated 27.05.2013. The said fact militates
against the plaintiff.
15. In the plaint, the plaintiff has sought mandatory injunction
directing defendants No.1 to 3 to deposit the arrears of rent as agreed
between them. In the present notice of motion also, she has sought the
same relief vide prayer clause (d). The said relief cannot be granted to
the plaintiff for the oblivious reasons that it would amount to granting a
final relief at an interlocutory stage. For these reasons and in view of
the order dated 11.01.2021 of the Chief Officer, M.B.R.&R. Board,
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Mumbai, I hold that the plaintiff is not entitled to the prayer clause (d)
of the notice of motion.
16. The learned Advocate for defendants No.1 to 3 has
submitted that defendants No.1 to 3 cannot hand over possession of the
flats in the newly constructed building to the plaintiff unless and until
the Competent Authority issues a completion certificate under Section
353-A of the MMC Act. According to him, as the Competent Authority
has not issued the completion certificate in accordance with the
provision of Section 353-A of the MMC Act, the present suit for specific
performance of the agreement dated 27.05.2013 is premature, and
therefore, a temporary injunction cannot be granted to the plaintiff.
17. I find force in the submission of the learned Advocate for
defendants No.1 to 3. It is well settled law that where a final relief
cannot be granted, an interim relief to the same effect is also barred.
18. Admittedly, defendants No.1 to 3 cannot hand over
possession of a flat in the newly constructed building until the
Competent Authority issues a completion certificate under Section 353-
A of the MMC Act. From the record, it
prima facie appears that the
Competent Authority has not issued a completion certificate for the
newly constructed building. The relief sought by the plaintiff for specific
performance of the agreement for permanent alternate accommodation
dated 27.05.2013 is, therefore, premature. So, the question of granting
relief of temporary injunction to the plaintiff does not arise.
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19. As stated
supra, the Competent Authority has passed an
order in favour of the plaintiff directing defendants No.1 to 3 to obey
the conditions mentioned in the permanent alternate accommodation
agreement entered into by them with the certified tenants/occupants
and to pay rent to them for the temporary alternate accommodation as
agreed by them. So, if the relief of temporary injunction is refused to
the plaintiff, no prejudice will be caused to her. The plaintiff has failed
to make out a
prima facie case. The balance of convenience also does
not lie in her favour. As a corollary, the plaintiff is not entitled to a
temporary injunction. Consequently, I hold that the notice of motion is
liable to be dismissed and proceed to pass the following order:
ORDER
1. Notice of Motion No.4296 of 2019 is dismissed.
2. Costs shall costs in the cause.
3. Notice of Motion No.4296 of 2019 is accordingly
disposed of.
Sd/-
R. S. PAVASKAR
Judge,
Dated : 03/03/2021 City Civil Court, Gr. Bombay
Dictated on : 03/03/2021
Transcribed on : 03/03/2021
HHJ signed on : 03/03/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
04.03.2021 2.52 p.m. ARUN ANNAMALAI MUDALIYAR
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Name of the Judge (With Court
Room No.)
HHJ Shri. R.S. PAVASKAR (CR 12)
Date of Pronouncement of
JUDGEMENT /ORDER
03.03.2021
JUDGEMENT /ORDER signed by
P.O. on
03.03.2021
JUDGEMENT /ORDER uploaded
on
04.03.2021
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